The Law of the Lock-down
On 22 March 2020 an appeal by Prime Minister Narendra Modi for voluntary Janta Curfew acted as the aftermath for declaration of Nation-wide lockdown from 24 March 2020 in order to prevent the spread of global pandemic COVID-19 (Coronavirus). So, it became an official curfew which is no longer voluntary, which also empowers the police to shoot violators depending on the situation.
It is interesting to note that under the Indian law, the words “lockdown” and “curfew” have not been defined, nor is it provided explicitly that the government has the power to declare something of this nature. So there was an ambiguity as to where the government will derive the source of law.
In furtherance of the lockdown declaration, the Ministry of Home Affairs in its official notification invoked the lockdown under section 6 (2) (i) of the Disaster Management Act and the Home Secretary issued guidelines for this lockdown under Section 10 of the Disaster Management Act since the National Disaster Management Authority (NDMA) was set up under the leadership of the Prime Minister, and the National Executive Committee (NEC) is chaired by the Home Secretary.
However, if we look at the definition of Disaster as defined under section 2(d) of the Act, it states that “Disaster means a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man-made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area.”, but nowhere this definition is competent to bring it within its purview “epidemics or diseases”. Nevertheless, the Ministry of Home Affairs declared COVID-19 as a “notified disaster” thus bringing it within the scope of the definition of disaster as provided in Section 2(d) of the Act.
The guidelines pressed for complete stoppage of all types of transport services and also provided under paragraph 17 that any person who violates these containment measures will be liable under Sections 51 to 60 (Offenses and Penalties) of the Disaster Management Act, and under Section 188 of the Indian Penal Code for disobeying an order passed by a public servant, which provides for imprisonment ranging from one to six months.
Many see this as an infringement of fundamental right of movement enshrined under Article 19(1) of the Indian Constitution, but this cannot be termed invalid as this right is subject to reasonable restrictions under Article 19(2). Moreover, the Epidemic Diseases Act gives more power to the State and Central governments under Section 2 and 2A to take necessary steps in the situation of an epidemic to control its outbreak.
To restrict the unnecessary movement of people, many state governments have also put into place Section 144 which empowers the District Magistrates/ Sub-divisional Magistrates or Executive Magistrates to pass orders, prohibiting the gathering of four or more people in public spaces which also includes the suspension of freedom of movement since this section confers extraordinary powers. Orders under Section 144 are such which are likely to prevent a danger to human life, health and safety.
The rules of social distancing without applying these laws will become meaningless due to overpopulation, heavy congestion and lack of facilities in several parts of the country. Hopefully, we will get over this soon and re-define our laws to suit the Indian population and the society.
ABOUT THE AUTHOR- Govind Hari Lath is currently a final year student of Law at the Faculty of Law, University of Delhi. You can contact them at- www.linkedin.com/in/govind-lath-31b801111
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